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Friday round-up

In this recess week for the Court, retirement and nomination speculation have taken center stage in Supreme Court coverage.  In an essay in the forthcoming issue of Newsweek magazine, Dahlia Lithwick considers Justice Stevens’s “out of character” public pondering over his retirement decision and makes the case that “what looks to be public agonizing over his retirement is in fact agony over the direction of the court itself.”  On her Court Beat blog, USA Today reporter Joan Biskupic predicts that the personal, on-the-record interviews are telling indicators that Stevens will in fact retire this Term.

On the nominations side, Above the Law asks, “Is the Kagan Nomination a Done Deal?,” and in an opinion piece for the Pocono Record, Douglas Cohn and Eleanor Clift write that “Kagan’s ability to bridge the differences between competing ideologies could be just what Obama needs to fulfill his commitment to change Washington, and she might just turn out to be one of the great ones, one of those justices who only come along every 30 years or so.” The blog Washington Briefs reports Douglas Kmiec’s thoughts on who should fill an open seat on the Court.  Kmiec, a constitutional law scholar currently serving as Ambassador to Malta, suggests that the President consider Supreme Court litigators Carter Phillips and Walter Dellinger for the next vacancy.

For judicial nominations generally, the Obama administration is poised to set a modern record for achieving the fewest judicial nominations and confirmations halfway through a president’s first term, observes Al Kamen in a column for the Washington Post.  (WSJ Law Blog has a post commenting on Kamen’s column, as well.)  Kamen points out that a summer Supreme Court nomination would slow the pace even further. One particular nomination—Goodwin Liu’s nomination to the Ninth Circuit—is in the Washington Post, the Boston Globe, and the Yale Daily News this week.  The Post reports that “[a]ctivists on both the left and right view Liu’s nomination as a practice run for the next Supreme Court vacancy, which could come as soon as this year if Justice John Paul Stevens retires.”

Writers and commentators continue to take note of Chief Justice Roberts’s wide-ranging remarks on Wednesday at Indiana University School of Law in Indianapolis (covered originally in yesterday’s round-up). Tony Mauro’s article for the National Law Journal offers a snapshot of the breadth of Roberts’s comments, which touched on e-discovery, architecture, and law review articles, among other topics.  Reacting to Roberts’s opinion that law review articles are not “particularly helpful for practitioners and judges,” Daniel Solove writes for Concurring Opinions that the Chief Justice’s view is “kind of glib and dismissive.  It is true that a lot of legal scholarship is written for an academic audience, but a lot is written with practitioners and judges in mind.”


  • Linda Greenhouse’s column for the New York Times’s Opinionator blog draws on the Court’s recent opinion in Padilla v. Kentucky and oral argument in Carachuri-Rosendo v. Holder to argue that “[i]n this nation of immigrants and their descendants, we have become so obsessed with rooting out, locking up and packing off those whom we decide should not be permitted to remain among us that we are in danger of losing a moral center of gravity.”
  • has a video recording of yesterday’s program at Georgetown Law Center, “Women and the Supreme Court Bar,” which featured Justice Ginsburg on a panel with Pam Karlan, Patricia Millett, and Virginia Seitz.  (The event was announced and described on SCOTUSblog earlier this week.)
  • The BLT has a report on comments made by Ted Olson regarding his challenge to Proposition 8 in California. When asked about the Court’s decision to block a planned broadcast of the Prop. 8 trial, Olson responded: “The justices just don’t like cameras in the courtroom . . . . But I don’t see their order as tipping their hands on their thoughts on the case.”
  • Peter Scheer of the First Amendment Coalition writes in the Huffington Post that “Citizens United may be the most consequential First Amendment decision—in terms of expanding free speech rights—since New York Times v. Sullivan.”